Filed: Jan. 12, 2010
Latest Update: Feb. 21, 2020
Summary: Case: 08-30960 Document: 00511001491 Page: 1 Date Filed: 01/12/2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED January 12, 2010 No. 08-30960 Charles R. Fulbruge III Summary Calendar Clerk JOHN W. WINDHAUSER, Plaintiff-Appellant, v. BOARD OF SUPERVISORS FOR LOUISIANA STATE UNIVERSITY & AGRICULTURAL AND MECHANICAL COLLEGE, Defendant-Appellee. - JOHN WINDHAUSER, Plaintiff-Appellant, v. RONALD R. ANDERSON; JACK A. ANDONIE; BERNARD E
Summary: Case: 08-30960 Document: 00511001491 Page: 1 Date Filed: 01/12/2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED January 12, 2010 No. 08-30960 Charles R. Fulbruge III Summary Calendar Clerk JOHN W. WINDHAUSER, Plaintiff-Appellant, v. BOARD OF SUPERVISORS FOR LOUISIANA STATE UNIVERSITY & AGRICULTURAL AND MECHANICAL COLLEGE, Defendant-Appellee. - JOHN WINDHAUSER, Plaintiff-Appellant, v. RONALD R. ANDERSON; JACK A. ANDONIE; BERNARD E...
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Case: 08-30960 Document: 00511001491 Page: 1 Date Filed: 01/12/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 12, 2010
No. 08-30960 Charles R. Fulbruge III
Summary Calendar Clerk
JOHN W. WINDHAUSER,
Plaintiff-Appellant,
v.
BOARD OF SUPERVISORS FOR LOUISIANA STATE UNIVERSITY &
AGRICULTURAL AND MECHANICAL COLLEGE,
Defendant-Appellee.
------------------------------------------------
JOHN WINDHAUSER,
Plaintiff-Appellant,
v.
RONALD R. ANDERSON; JACK A. ANDONIE; BERNARD E.
BOUDREAUX, JR; MARTY CHABERT; CHARLES V. CUSIMANO;
FRANCIS M. GOWEN, JR; WILLIAM JENKINS; LOUIS LAMBERT;
LAURA A. LEACH; SEAN O’KEEFE; DOROTHY REESE; JAMES P. ROY;
JERRY E. SHEA, JR; C. STEWART SLACK; LACEY D. SPENDER;
CHARLES S. WEEMS, III and ROD WEST,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:02-CV-01022
Case: 08-30960 Document: 00511001491 Page: 2 Date Filed: 01/12/2010
No. 08-30960
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
This appeal arises from the district court’s grant of summary judgment to
all defendants on Plaintiff-Appellant John W. Windhauser’s claims under
42 U.S.C. § 1983, the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.,
and the Louisiana Employment Discrimination Act, La. Rev. Stat. 23:301. For
the following reasons, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Louisiana State University hired Windhauser as an associate professor in
the School of Journalism in 1982. LSU granted Windhauser tenure in 1984. In
1994, the School of Journalism was elevated to an independent college-level unit
and renamed the Manship School of Mass Communication. Beginning in 1994,
Windhauser began receiving poor annual reviews from John Hamilton, the Dean
of the Manship School. In 1998, LSU placed Windhauser on leave without pay
on account of his chronic back pain. In March of 1999, Windhauser filed his first
lawsuit against LSU, asserting that it had unlawfully placed him on leave
without pay. Throughout this period, Windhauser continued to receive below-
average employment reviews from Hamilton. In 2002, Hamilton informed
Windhauser that he would initiate a formal faculty review of Windhauser’s job
performance pursuant to Permanent Memorandum 35 (PM-35), a policy
governing the review of LSU’s faculty ranks. On March 12, 2002, the panel
conducting the review concluded that Windhauser’s performance was
unsatisfactory and warranted formal remediation efforts.
In April of 2002, Vice-Chancellor Daniel Fogel initiated formal remediation
efforts by convening a committee to address Windhauser’s performance issues.
*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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No. 08-30960
Windhauser submitted a document outlining a plan for improvement, but the
committee determined that this plan did not outline any specific steps he would
take to address his job performance issues. In August of 2002, the committee
again requested a plan of improvement, but Windhauser failed to submit any
documents. In October of 2002, Windhauser amended his lawsuit to include
claims under the ADA for discrimination and failure to accommodated his
disability and a claim under Title VII for unlawful retaliation. The defendants
removed the litigation to the United States District Court for the Middle District
of Louisiana. In January of 2003, Chancellor Mark Emmert requested that
Windhauser submit an updated plan to the remediation committee; Windhauser
did not submit the required plan.
In May of 2003, Hamilton notified Windhauser that he was recommending
that proceedings be initiated to terminate Windhauser’s employment for cause
due to Windhauser’s failure to cooperate with the remediation committee. A
faculty panel conducted a hearing and recommended that Windhauser be
terminated. After review by Chancellor O’Keefe, President Jenkins, and the
Board of Supervisors, Windhauser’s employment with LSU was terminated
effective July 8, 2005.
In August of 2005, Windhauser filed a new complaint in the district court
alleging that he was denied due process rights during his termination hearing
and that he had been terminated in breach of his tenure rights and in violation
of the Contracts Clause. Windhauser named LSU President William Jenkins;
Chancellor Sean O’Keefe and the individual members of the Board of
Supervisors as defendants in this lawsuit and sought relief under 42 U.S.C.
§ 1983. The district court consolidated the new complaint with Windhauser’s
previous lawsuit. Defendants filed a motion for summary judgment on all claims
except Windhauser’s claims arising from his placement on leave without pay.
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No. 08-30960
II. STANDARD OF REVIEW
We review a grant of summary judgment de novo, applying the same legal
standards as the district court. Condrey v. SunTrust Bank of Ga., 429 F.3d 556,
562 (5th Cir. 2005). In reviewing a grant of summary judgment, we we view the
evidence and inferences from the summary judgment record in the light most
favorable to the nonmoving party. Minter v. Great Am. Ins. Co. of N.Y.,
423 F.3d
460, 465 (5th Cir. 2005). “Summary judgment is proper when the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is
no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” Kane v. Nat’l Union Fire Ins. Co.,
535 F.3d 380,
384 (5th Cir. 2008) (internal quotation marks and citations omitted).
III. ANALYSIS
A. § 1983 Claims
The district court held that the individual defendants were entitled to
qualified immunity on all of Windhauser’s § 1983 claims. Windhauser did not
address this issue in his initial brief to the court; he raised it in his reply brief
only after the appellees argued that he had waived the issue on appeal. An
appellant’s failure to raise an issue in its initial brief constitutes abandonment
of that issue. Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994); United
Paperworkers Int’l Union v. Champion In’t Corp.,
908 F.2d 1252, 1255 (5th Cir.
1990).
B. ADA and LEDA Claims
Windhauser next argues that the district court erred in granting summary
judgment on his claims under the ADA and the Louisiana Employment
Discrimination Act. As a preliminary matter, we observe that Windhauser
provides no supporting argument regarding his claims under the LEDA 1 and has
1
A footnote in Windhauser’s initial brief states that “Louisiana courts frequently find
federal jurisprudence in interpreting the state counterpart provision to the ADA to be
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No. 08-30960
thus failed to properly brief the issue. An appellant who fails to properly brief
an issue before this court waives it. U.S. v. Thames, 214 F.3d 608, 611 n.3 (5th
Cir. 2000).
Windhauser claims that the district court erred by treating his claims as
disparate-treatment claims under the ADA, when in fact they were failure-to-
accommodate claims. A failure-to-accommodate claim under the ADA is distinct
from a claim of disparate treatment. 42 U.S.C. §§ 12112(a), (b)(5)(A). A review
of Windhauser’s complaint, however, indicates the majority of his claims were
in fact disparate-treatment claims.2 Furthermore, the record does not indicate
that the district court erroneously treated Windhauser’s failure-to-accommodate
claims as disparate-treatment claims when it granted summary judgment to the
defendants.
Windhauser also argues that the defendants failed to reasonably
accommodate his requests regarding the location of his faculty offices, the
locations of his classrooms and the length of faculty meetings.3 We first address
Windhauser’s claims regarding his assignment of office space. The Louisiana
Commission on Human Rights has authority to remedy employment
discrimination, rendering Louisiana a “deferral state.” See La. Rev. Stat. Ann.
persuasive.” This statement may be accurate, but it does not constitute a properly-briefed
argument. Windhauser makes no other reference to his LEDA claim in his initial brief or his
reply brief.
2
In his complaint, Windhauser asserted that he was denied a cost of living raise that
all other faculty received; that non-disabled faculty were assigned more-accessible classroom
space; that non-disabled faculty were allowed to teach graduate school classes while he was
denied the same opportunity; that non-disabled faculty were allowed to teach summer courses
while he was not; and that non-disabled faculty were granted course reductions to allow for
academic research while he was not. These claims rest on a theory of disparate treatment,
rather than a failure to accommodate.
3
Windhauser has not briefed any of his disparate-treatment claims or his claim of
unlawful retaliation and has thus abandoned them. Banks v. Thaler, 583 F.3d 295, 329 (5th
Cir. 2009).
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§ 51:2231, et seq. Because Louisiana is a deferral state, Windhauser had three
hundred days from an alleged act of discrimination to file a charge with the
Equal Employment Opportunity Commission (EEOC). See Huckaby v. Moore,
142 F.3d 233, 238 (5th Cir. 1998) (noting that Texas’s status as a deferral state
granted plaintiff three hundred days to file suit). Windhauser filed a charge of
discrimination on January 8, 2002.4 Accordingly any acts of discrimination
which occurred prior to March 14, 2001 are time-barred.5
Windhauser’s first claim arises from a letter written by his physician, Dr.
Kramm, requesting that Windhauser be assigned first-floor office space with an
appropriate chair and desk on March 23, 1999. The alleged denial of this
request would have occurred before the cut-off date, rendering this claim time-
barred. Windhauser also claims that he made two separate requests to be
assigned closer office space and was denied on both occasions. The first request
was made after Dr. Whitney Mundt passed away in 1996 and his offices became
available; this incident is time-barred. The second request was made in the
summer of 2002 during the renovation of the Journalism Building. This claim
was not included in Windhauser’s January 8 EEOC complaint and we therefore
4
Before the district court, the parties also referenced an earlier EEOC charge filed
sometime in August of 2001. The record on appeal does not contain a copy of this charge and
so we will not consider it. We note, however, that our analysis would yield the same
conclusion even if we were to consider the earlier charge and assume that it was dated August
1, 2001.
5
Windhauser attempts to circumvent the limitations period by arguing that the
defendants’ actions fall under the “continuing violation theory” and that the 300-day
exhaustion requirement should be relaxed. “The continuing violation theory relieves a
plaintiff of establishing that all of the complained-of conduct occurred within the actionable
period if the plaintiff can show a series of related acts, one or more of which falls within the
limitations period.” Messer v. Meno, 130 F.3d 130, 134 (5th Cir. 1997). However, the relevant
discriminatory actions alleged in the complaint “[are] the sort[s] of discrete and salient
event[s] that should put an employee on notice that a cause of action has accrued.” Huckabay
v. Moore,
142 F.3d 233, 240 (5th Cir. 1999); see also Nat’l R.R. Passenger Corp. v. Morgan,
536
U.S. 101, 114 (2002). We therefore find the continuing violation doctrine inapplicable to the
time-barred claims.
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No. 08-30960
will not consider it. Nat’l Ass'n of Gov’t Employees v. City Pub. Ser. Bd. of San
Antonio, Tex. 40 F.3d 698, 711 (5th Cir. 1994) (holding that courts have no
jurisdiction to consider Title VII claims as to which a plaintiff has failed to
exhaust administrative remedies).
Windhauser next argues that the district court erred in granting summary
judgment on his claims regarding his request for first-floor classroom space and
his request that his classrooms be located near his office. The record is
somewhat unclear as to whether Windhauser ever made a request for first-floor
classroom space. Assuming that such request was implied in Dr. Kramm’s
March 1999 letter, it is time-barred. Windhauser’s request for closer classroom
space refers to the relocation of classrooms for six faculty to the Middleton
Library during the spring of 2001. This claim was not styled as a failure-to-
accommodate claim in the complaint. Rather, it alleged that Windhauser was
purposefully assigned classroom space that made it more difficult on him as a
result of his disability while non-disabled faculty were assigned more accessible
space. Windhauser cannot recharacterize this claim as one for a failure to
accommodate on appeal.6
Finally, Windhauser argues that the district court erroneously granted
summary judgment on his claims that the defendants failed to accommodate his
requests to limit all faculty meetings in which he was involved to twenty-
minutes. Under the ADA, “[n]o covered entity shall discriminate against a
qualified individual with a disability because of the disability . . . .” 42 U.S.C.
§ 12112(a). The term “discriminate” includes “not making reasonable
accommodations to the known physical or mental limitations of an otherwise
6
Summary judgment would be appropriate even if we were to treat the claim on appeal
one for disparate treatment. Windhauser has failed to establish a prima facie case of
discrimination with respect to the reassignment as the other faculty members who had their
classrooms reassigned were not disabled.
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No. 08-30960
qualified individual with a disability . . . unless such covered entity can
demonstrate that the accommodation would impose an undue hardship on the
operation of the business of such covered entity.” § 12112(b)(5)(A). The plaintiff
bears the initial burden of proof on the issue of reasonableness, but need only
show that the proposed accommodation is reasonable “in the run of cases.” Riel
v. Elec. Data Sys. Corp., 99 F.3d 678, 683 (5th Cir. 1996).
We find that the district court properly granted summary judgment to the
defendants on this claim. Windhauser presented no evidence at summary
judgment that his proposed accommodations were reasonable. On appeal, he
reasserts that his requests were reasonable without citing any evidence
presented to the district court. Such unsupported assertions are insufficient to
defeat a motion summary judgment. Clark v. Am.'s Favorite Chicken Co., 110
F.3d 295, 297 (5th Cir. 1997).
For the foregoing reasons, the judgment of the district court is hereby
AFFIRMED.
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